New Six Strikes Internet Regulations

Last week the six largest internet service providers in the country announced an agreement with the nation's largest content providers. The ISP's will adopt something called the copyright alert system - if users are suspected of pirating copyrighted material they'll be warned - up to six times - at which point something bad will happen to them. Timothy B. Lee of Ars Technica explains the strikes and the stakes.

Transcript

BROOKE GLADSTONE: Last week the nation's largest Internet service providers, including Comcast, Verizon and AT&T, struck a deal with the nation's largest content providers, the Motion Picture and Recording Industry Associations of America. The ISPs agreed to follow the contents industries so-called “copyright alert system.”

The system works like this: let's say you're on the Internet and you just happen to be downloading a movie that, let's say, is pirated, if the content provider sniffs you out, it alerts your ISP and the ISP warns you that what you’re doing is illegal. That’s strike one. In this game you get six strikes. Each strike triggers a variety of other warnings and eventually your Internet speed could be deliberately slowed down, or worse.

Internet watchers like Timothy B. Lee, an adjunct professor at The Cato Institute, are of two minds about the announcement. On the one hand, it's not the three strikes rule that they had feared. On the other hand, Internet service providers are now copyright enforcers.

TIMOTHY B. LEE: The network providers are kind of caught between a rock and a hard place, because on the one hand, they're getting a lot of pressure from copyright holders, and perhaps from people in Washington, to do more to crack down on peer-to-peer file sharing, but, on the other hand, their paying customers are the - their users. Generally it's not good in business to anger your own customers. So they've been trying to sort of thread this needle.

BROOKE GLADSTONE: There has been something of a turnaround. You quote in your article an AT&T letter to the Office of Management and Budget last year, writing that “Private entities are not created or meant to conduct the law enforcement and judicial balancing act that would be required for a copyright alert system like this.”

TIMOTHY B. LEE: This is a position that the ISPs have stuck to for a long time, that they’re just a neutral conduit for other people's information, and it's really a dispute between the copyright holder and the users.

I think there's two things that might be going on. One of them is that the White House is widely credited with, quote, unquote, “brokering” this agreement. And maybe they said, well, you know, if you don’t do this voluntarily, we might have to look at maybe some kind of regulatory solution.

And the other thing that's changed in — in recent years is that a lot of these ISPs, particularly AT&T and Verizon, have gone into the content business. Before maybe the middle of the last decade the services Verizon offered you were just phone and Internet.

And what changes, when they rolled out FIOS, there’s now a FIOS television option that’s basically the same thing as cable television. And in order to run that service, they need to get content from Hollywood. And that, I think, gives the copyright holders a little bit more leverage over these network providers.

BROOKE GLADSTONE: Another argument that AT&T made was the slippery slope argument that now they're asking to police their users for copyright infringement. Maybe later it'll be for gambling or for porn.

TIMOTHY B. LEE: We would be pretty outraged if your phone company was punishing you based on what kind of telephone calls you made. And I think the principle that Internet service providers are neutral conduits – their job is just to move packets to and from your computer — is a relatively important one.

And once you erode that principle, there’s going to be all sorts of people who say, well, now that you’re in the business of stopping people from doing bad things on the Internet, I've got another bad thing I'd like you to help stop.

These network providers have neither sort of the expertise or the right incentives to make their decisions. And so, I think the right thing for them to do is probably what they were doing before this agreement, which is that if they got a complaint from a copyright holder, they would pass it along to the user and they would provide the user subscription information only pursuant to a court order.

BROOKE GLADSTONE: But is this so unreasonable? So you get a handful of re-education notices from Verizon, if what you're doing is illegal, why shouldn't Verizon let you know?

TIMOTHY B. LEE: Well, so there’s two pieces to this. They've always been doing the alerts. That's not what's new. What's new here are these so- called mitigation measures. And the problem with that is that an accusation from a copyright holder is just that, an accusation.

And maybe they got it right, but maybe they didn't. And it's important, I think, if somebody accuses you of committing a crime for you to have the opportunity to give your side.

Now, there is a process in this copyright alert system where you can appeal. But you have to pay 35 dollars for the privilege of defending yourself. And it's not really clear exactly what the standards are gonna be. It's not clear exactly who's gonna be the neutral party who will hear these kinds of disputes.

BROOKE GLADSTONE: Has any ISP said exactly what'll happen as the strikes pile up? Does that start with a slowdown? Ultimately, is it the sudden death of getting knocked off the Internet?

TIMOTHY B. LEE: I think that they’ve said that getting knocked off the Internet is not one of the options, although obviously, that could change. But yeah, it's up to the ISP’s discretion.

I think there's a pretty clear sense that customers don't want a three-strikes or a six- strikes approach, where they actually get kicked off the Internet. And so, to – to mollify the content industry they are coming up with things that they think are less punitive than the six strikes. And the vaguer they are about that, the easier it is to make both sides happy.

I think where the rubber will really meet the road on this is when they actually start to get some customers who are getting to their fourth and fifth strikes, and then it can't be abstract anymore. They actually have to decide which customers get which kind of penalties.

BROOKE GLADSTONE: Okay, so why should we care?

TIMOTHY B. LEE: I think it's important because if you got accused of some crime, if your electricity got shut off or your water got shut off, that would be a pretty severe punishment, and we would really want to have some due process. I think the same sort of concerns can be raised about the ISPs.

The other reason we should be concerned is I don't think this is a stable situation. Now that the ISPs have conceded the principle that they have some role in enforcement, this is the sort of thing where once the ISPs give an inch, the – the people who want them to be enforcement will take a mile.

BROOKE GLADSTONE: Timothy, thank you very much.

TIMOTHY B. LEE: Thank you.

BROOKE GLADSTONE: Timothy B. Lee is an adjunct scholar at The Cato Institute and a writer for the tech site, Ars Technica.

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